Ankush Ramu Bhoir vs State Of Maharashtra
2021 Latest Caselaw 10190 Bom

                                                                                          1-Cr.appeal-342 of 1998.doc




                                         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                               CRIMINAL APPELLATE JURISDICTION

                                                  CRIMINAL APPEAL NO. 342 OF 1998
                              Ankush Ramu Bhoir
                              Age : about 19 years,
                              R/o. Wafa. Tal. Bhiwandi,
                              Dist. Thane.                                              ... Appellant
                                        Versus
                              State of Maharashtra                                      ... Respondent
                                                            .....
                              Mr. P. R. Arjunwadkar, Advocate for the Appellant.
                              Mrs. Veera Shinde, APP for Respondent - State.
                                                                    .....

                                                 CORAM                     :     PRAKASH D. NAIK, J.

                                                 RESERVED ON               :     14th JULY, 2021.
                                                 PRONOUNCED ON             :     3rd AUGUST, 2021.

                              JUDGMENT :-

1. The appellant is aggrieved by the Judgment and

order dated 13th February, 1998 passed by the IV Additional

Sessions Judge, Thane, in Sessions Case No.124 of 1997. The

appellant is convicted for the offence punishable under Section

376 of Indian Penal Code (for short "IPC") and sentenced to

suffer rigorous imprisonment for seven years and to pay fine of

Digitally signed Rs.2,000/- and in default to suffer further rigorous by SAJAKALI SAJAKALI LIYAKAT JAMADAR LIYAKAT JAMADAR Date:

2021.08.03 imprisonment for six months.

           11:18:57
           +0530



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                                                        1-Cr.appeal-342 of 1998.doc

2. The case of the prosecution is that the victim girl

aged about 14 years was taking education in school at Sagaon.

She was staying with her maternal uncle at Wafa. On 22 nd

October, 1996 at about 10.00 a.m. she was proceeding to school

alone. It is alleged that the appellant followed her, caught her

and took her behind the bush and by threatening committed

rape and ran away. The victim girl returned home and narrated

the incident to her maternal aunt. Her maternal uncle had been

to Shahapur and on his return, the incident was disclosed to

him and the complaint was filed with Padgha Police Station vide

C.R. No. I-157 of 1996. The appellant was arrested on 23 rd

October, 1996. Vide order 1st September, 1997, he was granted

bail by this Court during the pendency of trial.

3. Charge was framed on 29th August, 1997 for offence

under Section 376 of IPC. Trial proceeded. The prosecution

examined seven witnesses.

4. PW-1 is the victim girl. PW-2 - Sukrya More is the

maternal uncle of the victim. PW-3 - Thama @ Sunil Sukrya

More is material aunt of victim. PW-4 - Baby Pandurang

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Sonawane is schoolmate of victim. PW-5 Raghunath Kondu

Dalvi is the panch witness for spot panchanama. PW-6

Ramchandra M. Dhuri is P.S.I. attached to Padgha Police Station

and Investigating Officer. PW-7 - Dr. Anil Pichad is the Medical

Officer, who examined the appellant.

5. Statement of the accused was recorded under

Section 313 of Cr.P.C. Defence of accused is of false implication.

Appellant was in partnership business with Sukrya. He was too

receive Rs.15,000/- from Sukrya. He demanded amount from

Sukrya (PW-2). He picked up quarrel. Accused was threatened

by PW-2.

6. Learned counsel for the appellant urged following

submissions :-

i) There is delay in lodging First Information Report (for short "FIR").

ii) The spot of incident was busy road. There is no independent witness.

iii) The victim did not disclose the incident to PW-4.

iv) The victim did not raise cry and did not shout at the time of incident.

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     v)     Medical evidence do not corroborate the version of the
     victim.

vi) Medical Officer is not examined and hence adverse inference will have to be drawn against the prosecution.

vii) No evidence to establish the age of the victim.

viii) Chemical Analysis (C.A.) report do not support the prosecution case.

ix) The evidence of witnesses is contradictory to each other, which creates doubts about the genuineness of prosecution case.

x) The statement of the accused recorded under Section

313 of Cr.P.C. is bad in law. The circumstances relied upon by

the prosecution against the appellant were not put to him and

without giving an opportunity to tender explanation, the

appellant was convicted.

xi) Accused is entitled for benefit of doubt.

7. Learned counsel for the appellant relied upon the

following decisions :-

i) Supreme Court decision in the case of Rajoo & Ors. V/s.

State of M.P. dated 3rd December, 2008 delivered in Criminal Appeal No. 1094 - 1098 of 2000.

ii) Rahim Beg & Anr. V/s. State of U.P. AIR, 1993, SC, 343.

Sajakali Jamadar 4 of 18 1-Cr.appeal-342 of 1998.doc

iii) Shaikh Maqsood V/s. State of Maharashtra, (2009), 6 SCC 583.

iv) Inspector of Customs, Akhnoor, Jammu and Kashmir V/s.

Yashpal and Anr. (2009) 4 SCC 769.

v) Supreme Court decision in the case of State of Karnataka V/s. F. Natraj, decided on 7th October, 2015.

8. Learned APP Mrs. Veera Shinde submitted that there

is no delay in lodging FIR. The victim had disclosed the incident

to her maternal aunt. Maternal uncle was at Shahapur. On his

return to village, the incident was disclosed to him and

immediately thereafter, they proceeded to Padgha Police Station

and FIR was lodged. The incident had occurred at lonely place

and hence there were no independent witnesses. There is no

reason to discard the evidence of the victim. She has

categorically stated that the accused has sexually assaulted her.

The testimony of the victim is sufficient to convict the accused.

It is not necessary that her version should be corroborated by

any other evidence. There is no reason to disbelieve the

evidence of victim. There is no motive to falsely implicate the

appellant. The resistance by the victim girl is apparent from the

Sajakali Jamadar 5 of 18 1-Cr.appeal-342 of 1998.doc

fact that there were scratches of nail on the body of the accused.

This fact is evident from the deposition of PW-7, who had

examined the appellant. The victim was cross examined by the

defence. Evidence of victim could not be demolished in any

manner. The offence has been proved beyond reasonable doubt

and the appellant has been rightly convicted by the trial Court.

9. I have scrutinized ocular evidence of witnesses and

the documentary evidence on record. The victim (PW-1) has

deposed that she was taking education at G.A. Patil Vidyalaya,

Sagaon. She knows the accused. The accused caught her and

took her behind the bush and committed rape. She narrated the

incident to her grand mother. Her grand mother called maternal

aunt Dhamabai. Both of them went to Padgha S. T. bus stand.

Her maternal uncle returned from Shahapur and then they went

to Police Station and lodged the complaint. On 22 nd October,

1996 at about 10.00 a.m. the victim was on the way to school.

In the cross examination she has stated that her school distance

is at about 3.00 k.m. from Sagav. 10 to 15 students attend the

school from Wafa. There are about 7 to 8 girls. School time is

11.00 a.m. to 4.45 p.m. She used to start from home at about

Sajakali Jamadar 6 of 18 1-Cr.appeal-342 of 1998.doc

9.30 a.m and return at 5.30 p.m. She was going to school daily

along with other students. On the day of incident her friends

went ahead and she was behind by 15 minutes. She had talk

with maternal uncle before going to Police Station. She saw her

maternal uncle at Padgha bus stop. On the day of incident she

did not see any student while going to school and returning.

There were no blood stains on her clothes. She had no injury on

any part of body. She was knowing the accused 4 to 5 years

prior to incident. Baby Sonawane and Sunita Sonawane were

her friends. She did not see Baby and Sunita on the day of

incident in the morning.

10. PW-2 - Sukrya More is the maternal uncle of the

victim. He had gone to Shahapur. He returned to Padgha at 6.00

p.m. His wife and the victim were sitting at the bus stop. Victim

narrated him the incident. Complaint was lodged. The

statement was recorded at the Police Station on the same day of

complaint. He told the police that he saw his wife and victim at

bus stop Padgha. The said fact was not mentioned in the

statement. They went to Police Station and narrated the

incident. Their statements were recorded. From his evidence it

Sajakali Jamadar 7 of 18 1-Cr.appeal-342 of 1998.doc

is apparent that the victim and his wife were waiting at bus stop

was an omission which fact is not reflected in his statement.

11. PW-3 - Thama More is the wife of PW-2. According

to her she had gone to field. Her mother-in-law informed her

that the victim has returned home and she is weeping. The

victim told her that accused took her to Jwar crop and

committed rape while she was going to school alone. They went

to Padgha. 5 to 7 female students were going to school. They

were going together and returning together. The victim started

for school and thereafter, she went for work.

12. PW-4 Baby Sonwane is the student of the same

school. She deposed that they attend school by walk. On 22 nd

October, 1996, she was going to school at 9.00 a.m. Victim was

ahead. She saw her. She was returning. She was weeping. She

asked the reason but the victim did not say anything. About 5 to

7 female students were going to school. They used to start from

home at 9.00 a.m and returned at 5.30 p.m. Victim used to

accompany them to go to school and return. It is foot way. On

the way 4-5 person meet them.

Sajakali Jamadar 8 of 18 1-Cr.appeal-342 of 1998.doc

13. PW-5 Raghunath Dalvi is the panch witness for spot

panchanama. He stated that Sukrya is his brother-in-law. Sukrya

asked him to join as witness.

14. PW-6 Ramchandra Dhuri is Police Head Constable

attached to Padgha Police Station. He conducted investigation.

He recorded statements of witnesses. Padgha is 25 k.m. distance

from Wafa. There is agricultural land surrounding the spot. He

did not record the statements of adjoining field owners and field

labourers. He did not record the statements of teacher and head

master. He did not record statements of parents of the victim.

He did not ask for the certificate of the date of birth of the

victim with her maternal uncle. There is no documentary

evidence to show the age of victim except medical certificate.

He was aware that the victim is taking education in school and

the date of birth can be obtained from the school. He did not

make any effort to obtain birth certificate from school. He did

not make effort since he got medical certificate. He does not

know whether 12 to 14 students were going to school at Wafa

including 8 to 10 girls. He did not know that panch Raghunath

is the brother-in-law of Sukrya. He called Raghunath. Name of

Sajakali Jamadar 9 of 18 1-Cr.appeal-342 of 1998.doc

the Police Constable, who took victim to Civil Hospital is not

mentioned.

15. PW-7 Dr. Anil Pichad examined accused. He deposed

that on examining the accused he found three abrasions due to

nail on his right side of the chest. Age of injury was about 24

hours. Those were caused due to nail. It is necessary to issue

certificate in the prescribed form. In medico legal cases it is

necessary to write the name of Police Officer, who brought the

patient. He forgot to write the name of the Police Constable in

his certificate. Scratches mentioned in the certificate can be

caused by thorns of Karvandi and Bori. Scratches mentioned in

his report can be caused by any nail (male or female). The

injuries are not possible doe to scuffle with the Police.

16. From the evidence adduced by the prosecution, it is

not possible to convict the appellant for the offence charged

against him. The evidence on record does not inspire confidence

to award conviction. The charge is not proved beyond all

reasonable doubt. There are discrepancies in the evidence lead

by the prosecution and accused is entitled to benefit of doubt.

Sajakali Jamadar 10 of 18 1-Cr.appeal-342 of 1998.doc

17. The evidence of the victim indicates that, every day

she used to visit the school with her friends. The distance

between the residence and school is at about 3 k.m. According

to prosecution, the route to the school is through agriculture

fields. However, according to victim on the day of incident she

was alone. The victim has stated that usually she used to start

for school at about 9.30 a.m. On the day of incident, she started

for school at 10.00 a.m. Her friends had left ahead. However,

the evidence of PW-4 Baby Sonwane indicate that, on the day of

incident, victim was ahead. PW-4 started for school at 9.00 a.m.

and she saw the victim returning and that she was weeping. The

victim's evidence however disclosed that, her friends were

ahead and she left for school at 10.00 a.m. Hence, the

deposition of PW-4 that while returning she saw victim weeping

is doubtful. It is also difficult to believe that considering the

route to the school and usual mode of going to school, on the

day of incident the victim was alone and the accused followed

her and committed the alleged act. PW-4 has stated that the

victim always used to accompany them to school and return.

On the way 4 to 5 persons used to meet them. The victim did

Sajakali Jamadar 11 of 18 1-Cr.appeal-342 of 1998.doc

not disclose the incident to her, although she was weeping.

PW-1 has not referred to presence of PW-4. PW-2 & PW-3 are

maternal uncle and maternal aunt of the victim. The victim has

admitted that there were no blood stains on her clothes. The

clothes of the victim were seized vide Exh.9.

18. The prosecution has preferred an application under

Section 294 of Cr.P.C. vide Exh.7 calling upon the accused to

admit the documents and the defence/accused had admitted

documents at Sr. Nos. 1, 3, 5 & 6 viz. Panchanama of the arrest

of accused dated 23rd October, 1996, panchanama of seizure of

the clothes of the victim dated 24 th October, 1996 (Exh.9),

Medical certificate of the victim dated 23rd October, 1996

(Exh.10), letter to C.A. report dated 1 st November, 1996

(Exh.11). Exh.10 is provisional medical certificate. The said

document indicate that the final certificate will be issued after

availability of C.A. report. The victim was examined by Dr. K.P.

Ubale on 23rd October 1996. The examination reads as follows:-

"Injuries : External Injuries :- Nil Internal Injuries :- Nil.

Vagina: Well developed and Specious.

Sajakali Jamadar 12 of 18 1-Cr.appeal-342 of 1998.doc

Her blood vaginal smear, vaginal swab of pubic hairs collected, sealed and sent for C.A.'s opinion."

19. There is no other medical examination report of the

victim on record. This medical certificate does not indicate

injuries sustained by the victim and whether she was sexually

assaulted. The prosecution has not examined medical officer to

substantiate the prosecution case that the victim was subjected

to sexual assault.

20. PW-5 Raghunath Dalvi is the panch for spot

panchanama which was recorded on 24th October, 2016. He has

admitted that he is the relative of complainant. The spot

panchanama is on Exh.16. The contents of the said panchanama

indicate that the grass was grown up to the knee and there are

bushes near the alleged spot of incident. On minute observation,

no mark was found at the place. Apparently, it had rained at the

relevant point of time. Although, it is the case of the prosecution

that the victim was aged about 14 years and that there is no

theory of consensual relationship, the prosecution has not

bothered to establish the age of victim. The Investigating Officer

has not collected any documents to establish the age of victim.

Sajakali Jamadar 13 of 18 1-Cr.appeal-342 of 1998.doc

He did not obtain birth certificate of victim. He admitted that

there are no documents regarding age of victim. He did not

record the statements of school teacher and head master. He

recorded statements of other students.

21. Prosecution has heavily relied upon the evidence of

PW-7 to contend that there were abrasions on the person of

accused in the form of scratches and there was resistance by the

victim girl. The victim has not stated in her evidence that she

had caused any scratches by nail to the accused. Apart from that

PW-7 has stated that scratches referred to by him in the

certificate can be caused by thorns of Karvandi and Bori or it

can be caused by nail (mail or female).

22. Although it is a case of the prosecution that the

victim was minor and she was sexually assaulted by the

accused. The prosecution has failed to examine medical officer

which speaks volume of doubt about the prosecution case. The

C.A. report do not corroborate the version of the prosecution.

Exh.20 is the C.A. report with regards to pubic hair and semen

of the accused and the result of analysis shows that neither

Sajakali Jamadar 14 of 18 1-Cr.appeal-342 of 1998.doc

semen nor vaginal fluid was detected and the blood group of

semen cannot be determined as the results are inconclusive.

C.A. report Exh.21 is in respect of blood, vaginal smear, vaginal

swab and pubic hair of the victim. The results of analysis are

neither semen nor vaginal fluid is detected. Exh.22 is the C.A.

report in respect to the clothes of the victim and earth and the

result of analysis is that undergarment was stained with blood

on middle portion. No blood was detected on the shirt, skirt,

pant, undergarment and earth. No semen was detected on shirt,

skirt, undergarment & pant.

23. I have perused the statement of the accused

recorded under Section 313 of Cr.P.C. Although the prosecution

had examined 7 witnesses, the questions put to the accused are

cryptic without referring to the evidence to most of the

witnesses lead by the prosecution. Statements under Section

313 of Cr.P.C. refers to the part of the evidence of PW-1 and PW-

7. No question relating to place of incident is put up to accused.

Statement is silent with regards to circumstances brought by

prosecution through evidence of PW-2, PW-3 and PW-4. There is

absolutely no reference to their evidence. There is reference to

Sajakali Jamadar 15 of 18 1-Cr.appeal-342 of 1998.doc

spot panchanama but not to the evidence of PW-5. Statement

under Section 313 of Cr.P.C. is also silent qua evidence and

investigation of PW-6. The object of Section 313 is to give an

opportunity to the accused to tender explanation. The questions

must be framed in such way as to enable the accused to know

what he has to explain, what are the circumstances which are

against him and for which the explanation is needed. The

whole object of the Section is to afford the accused a fair and

proper opportunity of explaining circumstances which appears

against him and that the questions must be fair and must be

couched in a form which a person will be able to appreciate and

understand. The accused in the present case was a village boy

aged about 19 years. The trial Court had ignored the

requirement of Section 313 of Cr.P.C. In the case of Shaikh

Maqsood V/s. State of Maharashtra (Supra), the Apex Court had

observed that no question was put to the accused which

established that he was the author of the crime. The purpose of

Section 313 is to explain any circumstances appearing in the

evidence against accused. In the case of Inspector of Customs,

Akhnoor, Jammu and Kashmir V/s. Yashpal and Anr. (Supra),

Sajakali Jamadar 16 of 18 1-Cr.appeal-342 of 1998.doc

the Supreme Court has again explained the object and necessity

of the statement under Section 313 of Cr.P.C. It was observed

that incriminating material was not brought to the notice of

accused while examining them under Section 313 of Cr.P.C. The

provision is mainly intended to benefit the accused and it is

corollary to benefit the Court in reaching the final conclusion. It

should be borne in mind that the provision is not intended to

nail the accused to any position but to comply with the most

salutary principle of natural justice enshrined in the maxim audi

alteram partem.

24. Solitary testimony of prosecutrix may be sufficient to

base conviction under Section 376 of IPC, if it inspires the

confidence of Court. The medical evidence in this case do not

corroborate prosecution case. The medical certificate adduced in

evidence is silent about occurrence of sexual assault and victim

being subjected to such ordeal. If the Court on facts finds it

difficult to accept version of prosecutrix on its face value, it may

search for evidence, direct or circumstantial, which would lend

assurance to her testimony.

Sajakali Jamadar 17 of 18 1-Cr.appeal-342 of 1998.doc

25. In the light of the aforesaid observations, I am of the

considered opinion that the prosecution has not established its

case beyond all reasonable doubt and the Judgment of

conviction would not sustain and it is required to be set aside.

26. Hence, I pass the following order :-

ORDER

i) Criminal Appeal No. 342 of 1998 is allowed.

ii) Impugned Judgment and order dated 13 th February, 1998 passed by the IVth Additional Sessions Judge, Thane, in Sessions Case No.124 of 1997, convicting the appellant for the offence under Section 376 of IPC and sentenced him to suffer rigorous imprisonment for seven years and to pay fine of Rs.2,000/- is set aside and the appellant is acquitted for the said offence.

iii) Fine amount, if any deposited by the appellant be returned to him.

iv) The appeal stands disposed of accordingly.

                                              (PRAKASH D. NAIK, J.)




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